Uttarakhand High Court
Joyti Prasad vs State Of Uttarakhand & Others on 16 March, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 2691 of 2013
Joyti Prasad .........Petitioner
Vs.
State of Uttarakhand & others .....Respondents
Mr. Arvind Kumar Sharma, Advocate, for the petitioner.
Mr. Suyash Pant, Standing Counsel, for the State of Uttarakhand.
Mr. Tapan Singh, Advocate, for respondent nos.4 and 5.
Ms. Anjali Bhargava, Advocate, for the respondent no.2.
Hon'ble Sharad Kumar Sharma, J (Oral)
The brief facts of the case are that the proceedings under
Section 21 (1), of the U.P. Consolidation of Holdings Act, 1953 (from
hereinafter referred to as the "Act"), which was registered by way of
Case No.357, was decided by the court of the Consolidation Officer,
vide its judgment and order dated 06.05.1994.
2. In the present writ petition, the grievance which has been
raised by the petitioner is to the effect that; on a challenge being given
to the said order of 06.05.1994, the same has been confirmed with the
dismissal of the appeal under Section 21 (2) of the Act, vide its
judgment and order dated 20.02.2009, and later on the said appellate
court's judgment too, was confirmed by the Revisional Court in
Revision No.62/2012-13, "Joyti Prasad Vs. Kishan Singh and others".
Apart from the fact that, if the, "Talika" appended to the order of the
Consolidation Officer, so far it relates to the petitioner, who is
"Khatedar No.88" is taken into consideration, the allotment of
"Chaks" made therein falls to be within the ambit of the provisions
contained under Section 19 of the Act.
3. Apart from it, if the Appellate Court's judgment itself is
taken into consideration, and particularly, that the findings which has
been recorded on internal page no.2 of the judgment dated
20.02.2009, the following findings have been recorded, which reads
as under:-
**blds ckotwn T;ksfr }kjk pd la[;k 88 ds lEcU/k esa ,d vU;
vihy vUrxZr /kkjk 21¼1½ pdcUnh vf/kdkjh ds vkns'k fnukad 06-05-
1994 ds fo:) fnukad 29-11-1999 dks ;ksftr dh x;h tcfd muds
}kjk ,d pd vihy iwoZ esa gh izLrqr dh x;h Fkh ftls vihyh;
U;k;ky; }kjk fnukad 19-03-2002 dks fujLr dj fn;k x;k Fkk**A
4. As per the findings which has been recorded therein, the
court of learned Settlement Officer, Consolidation, has observed that
as against the order of the Consolidation Officer dated 06.05.1994, the
appellant had already preferred an appeal on 29.11.1999 and that
appeal was dismissed by the judgment of 19.03.2002 (not on record).
5. The dismissal of the subsequent appeal by the judgment
dated 20.02.2009, is a question for consideration, before this Court
and during the course of the proceedings, this Court has called upon
the petitioner to place the document on record. Accordingly, in
compliance thereto, the petitioner has filed the supplementary
affidavit placing on record certain additional documents in order to
assist the Court in deciding the present writ petition. The documents
appended there with, and particularly, Annexure no.3 to the
supplementary affidavit, if it is taken into consideration, it refers to an
Appeal No.394/2000-2001 and if the cause title of the appeal is taken
into consideration, which is shown to be as against the order dated
06.05.1994, which was rendered in Case No.357.
6. What is important to mention herein is that, if the date of
its institution of the said appeal is also taken into consideration, that
happens to be of 29.11.1999, which in fact finds reference in the
Appellate Court's judgment too on Page No.32, as referred above,
which refers the date of the institution of the appeal. Meaning thereby,
as against the impugned order of Consolidation Officer dated
06.05.1994, the petitioner has already earlier preferred an appeal
under Section 21 (2) of the Act, which was numbered as Appeal
No.394/2000-2001, by filing the same on 29.11.1999 and as per the
findings which has been recorded in the impugned Appellate Court's
judgment, the said appeal was dismissed on 19.03.2002 (not on
record). As far as the dismissal of appeal on 19.03.2002 is concerned,
that will attach finality, qua the petitioner so far his grievance against
Consolidation Officer's judgment dated 06.05.1994 is concerned, in
view of the fact that it was his appeal, which was dismissed by the
said order dated 19.03.2002 and the counsel for the petitioner, based
on the documents which was placed on record, is not in a position to
make any statement, as to what consequence the judgment dated
19.03.2002, dismissing his 1st appeal being Appeal No.394/2000-01,
has attained too. Hence, any subsequent challenge given, by the
petitioner, to the order dated 06.05.1994 of the Consolidation Officer,
by preferring the 2nd Appeal, being Appeal No.346, yet again invoking
the appellate provisions of sub-section (2) of Section 21 of the Act,
would not be sustainable because of the principle of res judicata
would be applicable by the bar created by the earlier dismissal of
appeal vide judgment dated 19.03.2002.
7. Therefore, I am of the view that the findings even
otherwise, which has been recorded by the learned Appellate Court
and later on which was affirmed by the revisional court under Section
48 of the Act; is based upon the consideration of the fact that the
adjudication was even made in the earlier appeal on 19.03.2002, and
that was one of the reasons, which has been assigned by the learned
Appellate Court for holding the 2nd appeal of the appellant, filed later
on as to be not sustainable, as I am of the confirmed opinion, that if at
all the petitioner had any grievance to raise before the competent court
created under the Act, it ought to have been as against the initial order
dated 19.03.2002, passed in his 1st Appeal No.394/2000-2001, and not
by way of filing of the 2nd appeal being Appeal No.346 "Joyti Prasad
Vs. Hirderam Ram" for same cause of action against judgment of
Consolidation Officer dated 06.05.1994. On that limited count itself
that the impugned order, which has been put to challenge has been
rendered in the subsequent appeal preferred by the appellant which
was barred under law, without giving challenge to the principal order
dated 19.03.2002 rendered in his Appeal No.394/2000-2001, the 2nd
appeal at his behest of the petitioner challenging the order of the
Consolidation Officer dated 06.05.1994, would not be sustainable.
8. Consequently, the writ petition lacks merit and the same
is hereby dismissed accordingly.
(Sharad Kumar Sharma, J.)
16.03.2021
NR/
